MUNRO v. THE UNITED KINGDOM
Doc ref: 10594/83 • ECHR ID: 001-357
Document date: July 14, 1987
- Inbound citations: 19
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- Cited paragraphs: 0
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- Outbound citations: 13
AS TO THE ADMISSIBILITY
Application No. 10594/83
by J.H. MUNRO
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 July 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 September
1983 by J.H. MUNRO against the United Kingdom and registered on
19 October 1983 under file No. 10594/83;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to:
- the Commission's decision of 13 March 1984 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on its admissibility
and merits;
- the observations submitted by the respondent Government on
12 July 1984 and the observations in reply submitted by the
applicant on 7 September 1984;
- the Commission's decision of 11 October 1986 to invite the
parties to submit further observations in writing on the
admissibility and merits of the application;
- the further observations submitted by the respondent
Government on 20 January 1987 and the further observations
submitted by the applicant on 28 January 1987.
Having deliberated;
Decides as follows:
THE FACTS
The facts as they have been submitted by the applicant's
representatives, Messrs. J.P. Mewies & Co., Solicitors of Ilkley, and
Mr. Anthony Lester QC of counsel, on behalf of the applicant, a
British citizen born in 1936 and living in Yorkshire, who has been
unemployed since May 1977, and which are apparently not in dispute,
may be summarised as follows:
In December 1973 the applicant was appointed to the post of
Personnel and Management Services Officer with a local authority. In
May 1977 the applicant returned from a long period of sick leave and
was interviewed by his immediate superior, the Chief Executive of the
local authority, in relation to a number of matters concerning his
employment and his conduct in his post. This interview had been
preceded by correspondence between the Chief Executive and
representatives of the applicant's union concerning the complaints and
allegations which the Chief Executive was making against the applicant
and which were to be the subject of a meeting on 25 May 1977.
The applicant's employment was terminated following that
meeting. The Manchester Industrial Tribunal ("the Tribunal") held in
January 1978 that the applicant had been constructively dismissed
("the first decision"). In the course of the judgment, the Tribunal
record that they did not regard the applicant as a reliable witness on
questions of fact, describing him as unduly emotive and imaginative.
The Tribunal stated that they unhesitatingly accepted and preferred
the Chief Executive's evidence over that of the applicant, since they
found the Chief Executive a frank and honest witness. The local
authority's application for a review of the Tribunal's decision was
subsequently dismissed as was the applicant's request.
Thereafter the applicant took further proceedings before the
Tribunal to establish whether he had been unfairly dismissed. The
hearing took place on 23, 24 and 26 October 1978 and on 22 November
1978 the Tribunal held the applicant's claim to fail ("the second
decision"). The Tribunal held that the principal reason for the
applicant's dismissal was his employer's belief that he had submitted
incorrect car expense claims, which would constitute gross misconduct
and justify summary dismissal. In addition, other matters which
formed secondary reasons for the dismissal included the failure to
observe hours of work, absenting himself from his place of work
without authority or permission, unsatisfactory performance of his
duties, his inability to supervise, control and work with his
subordinates and his taking of holidays to which he was not entitled.
The Tribunal held that the applicant was given every opportunity to
explain these matters, but that his explanations did not satisfy the
Chief Executive.
The Tribunal's findings were quite clear in that they
considered:
"On the evidence that we have heard and having considered
the documentary evidence adduced, we consider that (the
ex-employers) had reasonable grounds to form the view that
(the applicant) had in fact made wrongful claims for journeys
which he had undertaken by car and that there was sufficient
evidence for (the ex-employers) to reach the view that (the
applicant) had taken holidays to which he was not entitled;
that the holiday sheet had been altered in order to facilitate
taking of those holidays. ... We consider and so find that the
principal reason for his dismissal was (the ex-employers')
belief that (the applicant) had submitted wrongful car expense
claims. For a man holding the position which (the applicant)
held this would constitute, and we so find, gross misconduct;
it would justify (the ex-employers) summarily dismissing him."
The Tribunal then went on to state:
"We certainly dismiss any suggestion which has been introduced
by the applicant, that his dismissal had been engineered
politically or that (the Chief Executive) wished to be rid of
him. The true position is that (the applicant's) dismissal
was brought about for the reasons referred to above; they were
reasons that related solely to his conduct and capability. He
was given every opportunity to give explanations. Those
explanations were not, in the view of (the Chief Executive),
satisfactory. We consider that (the Chief Executive) was
fully entitled, having regard to the evidence before him, to
reach and form that view."
The Tribunal concluded that they were:
"quite satisfied ... in the circumstances, having regard to
equity and the substantial merits of the case, that (the
applicant's) dismissal was not unfair..."
There were no grounds upon which an appeal to the Employment
Appeals Tribunal could be successful, since this could only consider
appeals on points of law.
The applicant contends that the contents of letters sent by the
Chief Executive to representatives of his union and to the Department
of Employment on 9 March 1977 and 26 July 1977 respectively were
libelous in alleging that he had made false returns for his car user
expenses. The applicant has provided evidence in the course of his
application which he claims disproves the allegations made by the
Chief Executive.
The applicant has sought legal advice with a view to issuing
proceedings for libel against the Chief Executive of the local
authority and the local authority itself on the basis of its vicarious
liability. On 1 September 1978 (that is, in the period between the
first decision and the second decision) Counsel gave a written opinion
on this question.
Counsel advised that whereas the Chief Executive's evidence
before the Tribunal would be wholly privileged (i.e. could not form
the basis of an action for libel) his correspondence with the
applicant's union and with the Department of Education would be
subject to qualified privilege. Qualified privilege arises where the
actions which were alleged to have been libelous result from the
proper performance of the duties of the person who uttered the libel.
Counsel therefore advised that in order to succeed in an action for
libel the applicant would have to show that the Chief Executive had
been motivated by malice and that his dominant motive in making the
publications complained of was an improper one. An improper motive is
a motive which the court would not accept as a justification for the
publication. Counsel went on to advise that it was generally
conclusive evidence of malice against an individual that he knew what
he published was false or published it recklessly and without any
positive belief that it was true.
Counsel then reviewed the specific evidence which the applicant
had presented to him to support the contention that the Chief
Executive was motivated by malice. He concluded this assessment in
the following terms:
"taken overall, the foregoing matters do, on the face of it,
constitute a fairly strong case that (the Chief Executive) was
malicious. But a number of them require further amplification
or confirmation and, bearing in mind the different impressions
which (the applicant) and (the Chief Excecutive) made on the
(Tribunal), I find it impossible to say at this stage that the
chances of proving malice against (the Chief Executive) at a
trial are better than 50%."
Counsel continued by advising that in the event that malice was
shown, the applicant could expect to recover "fairly substantial
damages" amounting to between £1000 and £1500 for each publication.
Counsel did not however address himself to the question of the
veracity of the statement made by the Chief Executive, the proof of
which would be a complete defence in defamation proceedings.
The applicant, who has been unemployed since the termination of
his employment with the local authority in question, and who ascribes
his failure to obtain a further post despite his qualifications, to
the refusal of the local authority, in particular the Chief Executive,
to provide him with a reference, has been unable to pursue proceedings
for libel in the absence of legal aid. Under the terms of Sections 6
and 7 and clause 1 of Part II of Schedule 1 to the Legal Aid Act 1974,
legal aid is not available in England and Wales for proceedings
"wholly or partly in respect of defamation". The applicant has
nevertheless issued a writ of summons to initiate proceedings for
libel against the local authority. The writ is dated 25 July 1983,
and claims as follows:
"The plantiff's claim is for damages for libel from the defendant
who by its employee (the Chief Executive) falsely and maliciously
wrote and published in a document dated 26 July 1977 to the
Department of Employment of and concerning the plaintiff and of
his honesty and competence."
This writ has been issued in order to preserve the cause of
action for one year from the date of issue and in order to remain
within the period of limitation for the action. On several occasions
the applicant has applied to renew and extend the writ, in view of the
proceedings pending before the Commission. If the applicant chooses
to proceed with the action he must prepare a full statement of claim.
The applicant submits that such a pleading would have to be settled by
a barrister because of the complex nature of defamation proceedings.
The applicant contends that he is unable to pursue the libel
action although he has a prima facie case, since he is in receipt of
supplementary benefit from the Department of Health and Social
Security and cannot afford the services of a solicitor and a
barrister. He argues that the highly technical and complex
requirements of defamation proceedings in the High Court prevent him
from proceeding unrepresented. He contends that the absence of civil
legal aid in these circumstances, coupled with the complexity of the
proceedings themselves, deprive him of the right of access to court to
vindicate his civil rights and specifically to pursue the proceedings
for defamation.
COMPLAINTS
The applicant complains that he is denied access to court for
the determination and/or enforcement of his civil rights by reason of
the non-availability of legal aid under the Legal Aid Act 1974 in
relation to proceedings "wholly or partly in respect of defamation".
He further contends that the absence of legal aid in these
circumstances prevents him from obtaining a fair and public hearing by
an independent and impartial tribunal established by law. He claims
that he is discriminated against on grounds of property and his
poverty from pursuing his civil rights.
The applicant contends that he has been subject to a
difference in treatment on three different bases:
1. The applicant has been treated less favourably
than persons seeking to enforce all other civil rights
before the ordinary courts. Such persons are entitled to
legal aid upon satisfying the relevant criteria.
2. The applicant has been treated less favourably
than the persons who have sufficient means to be able to
afford to bring legal proceedings to enforce their civil
rights. Even if a contracting State is not obliged to
operate a system of civil legal aid as such under the
Convention, where a system does exist legal aid must be
provided without discrimination.
3. The applicant has been treated less favourably than
certain public officials, such as police officers, who are
entitled to use public money to issue defamation proceedings.
The applicant invokes Articles 6 and 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 September 1983 and
registered on 19 October 1983.
On 13 March 1984 the Commission decided to bring the
application to the notice of the respondent Government and invite them
to submit written observations on its admissibility and merits
pursuant to Rule 42 (2)(b) of the Commission's Rules of Procedure. The
respondent Government's observations are dated 12 July 1984. On
19 July 1984 the President of the Commission decided that legal aid
should be granted to the applicant, who appointed Messrs. David R.
Pedley & Co., Solicitors of Keighley, West Yorkshire, to represent
him. The applicant's observations in reply to those of the Government
are dated 7 September 1984.
On 10 December 1984 the Commission resumed its examination of
the admissibility of the application, which it decided to adjourn. On
7 March 1985 the Commission resumed its examination of the
admissibility of the application which it again decided to adjourn
pending the receipt of the parties' observations in Application
No. 10871/84 (Dec. 10.7.86 unpublished).
On 16 September 1985 the applicant informed the Commission
that he had appointed Messrs. J.P. Mewies & Co., Solicitors, Ilkley,
to represent him in place of his former representative. On
22 October 1985 the applicant's new representatives informed the
Commission that they had instructed Mr. Anthony Lester QC of Counsel
on the applicant's behalf.
On 12 December 1985 the Commission resumed its examination of
the application, which it then decided to adjourn.
On 12 March 1986 the Commission resumed its examination of the
admissibility of the application and decided to invite the parties to
a hearing on the admissibility and merits. On 19 June 1986 the
President of the Commission decided that legal aid should be extended
to cover work in the case up to and including the hearing scheduled
for 12 November 1986.
On 11 October 1986 the Commission decided to cancel the
hearing which it had proposed to hold on 12 November 1986 in the light
of its decision on the admissibility of Application No. 10871/84.
The Commission decided to invite the parties, pursuant to Rule 42
(3)(a) of its Rules of Procedure, to submit such further observations
in writing on the admissibility and merits of the application in the
light of that decision on admissibility as they considered necessary.
The legal aid granted on 19 June 1986 was cancelled and replaced by
legal aid to cover work in the case up to the close of the written
submissions.
The respondent Government's further observations are dated
20 January 1987 and the applicant's further submissions are dated
28 January 1987.
SUBMISSIONS OF THE PARTIES
Submissions of the respondent Government
1. Domestic law and practice
Legal aid
The availability of legal aid and the conditions on which it
may be granted to a person to pursue civil proceedings in England and
Wales is governed by Part 1 of the Legal Aid Act 1974 (as amended by
the Legal Aid Act 1979 with effect from 28 April 1980) and the
regulations made under it. Section 7 of the 1974 Act provides that
legal aid is available in connection with such proceedings as are set
out in Part I of Schedule 1 to the Act, and is not available in
connection with proceedings mentioned in Part II of that Schedule.
Section 7 (2) of the 1974 Act provides that the provisions of Schedule
1 may be varied by regulations. Proceedings wholly or partly in
respect of defamation are excepted proceedings for this purpose under
Part II of Schedule 1 to the 1974 Act.
The 1974 Act provides that legal aid shall consist of
representation by a solicitor and, so far as necessary, by counsel,
such representation to include all such assistance as is usually given
by a solicitor or counsel in steps preliminary or incidental to any
proceedings, or in arriving at, or giving effect to, a compromise to
avoid or to bring to an end any proceedings.
To be eligible for legal aid, a person's disposable income and
capital must fall within the limit specified for the time being in
Section 6 of the 1974 Act. In addition to these financial limits,
Section 7 (5) of the 1974 Act provides that "a person shall not be
given legal aid in connection with any proceedings unless he shows
that he has reasonable grounds for taking, defending, or being a party
thereto".
The new Section 7 (5A) of the 1974 Act, implemented on
28 April 1980, further provides that "a person may be refused legal
aid if, in the particular circumstances of the case, it appears:-
(a) unreasonable that he should receive it;
(b) more appropriate that he should receive assistance by way
of representation".
Section 15 (1) of the 1974 Act requires the Law Society to
make arrangements for securing that legal aid is available as required
under Part 1 of the 1974 Act. Legal aid is not available at all in
respect of proceedings for defamation.
Defamation
Proceedings for damages for defamation may lie where words
have been used about a person which tend to lower him in the
estimation of right thinking members of society generally. A person
aggrieved by allegedly defamatory statements may seek damages or an
injunction to prevent publication or repetition of the defamatory
statement. Damages may be awarded on a basis that the plaintiff should
be compensated for the injury to his reputation caused by the
publication of the defamation about which complaint has been made.
There are a number of possible defences to defamation
proceedings:
(i) Justification - if a defendant can prove that the allegations
which he made against the plaintiff were true, then no action
will succeed against him. The defendant need not prove the
literal truth of the words but will succeed provided he
establishes the substance or sting of the words complained of.
Justification is a complete defence to any defamation action;
(ii) Privilege - a defendant may also argue that the allegedly
defamatory statement was privileged. An example of absolute
privilege is a statement made in the course of judicial or
quasi-judicial proceedings. In such circumstances the
person enjoying the privilege cannot be compelled to produce
the document or to repeat the statement (as the case may be)
in evidence. Furthermore, a statement made in pursuance of
a legal, social or moral duty to a person who has a
corresponding duty or interest to receive such a statement
enjoys qualified privilege. Such qualified privilege can only
be overcome by the person bringing the defamation proceedings
if it can be shown that the statement was made maliciously.
Defamation proceedings are civil proceedings which may only be
brought, except in some exceptional cases, in the High Court.
2. Admissibility
(a) Res judicata
The respondent Government submit that the application is
inadmissible as incompatible with the provisions of the Convention,
and in particular Article 6, or is manifestly ill-founded under
Article 6 para. 1 of the Convention.
They contend that the applicant has already had his claim
brought before a court i.e. the right enunciated by the Court in the
Golder case (Eur. Court H.R., Golder judgment of 21 February 1975
Series A, no. 18) has been satisfied. The Tribunal decided the
question, inter alia, of whether the applicant's dismissal by the
local authority was unfair. An appeal lies on a point of law from the
Tribunal to the Employment Appeal Tribunal. The local authority was
the respondent in the proceedings before the Tribunal as it would be a
defendant in any defamation proceedings. The Tribunal heard evidence
on the issues which the applicant now claims to be defamatory and
preferred the evidence given on behalf of the respondent authority to
that given by and on behalf of the applicant. The detailed findings
of fact made by the Tribunal indicate that the matters which the
applicant now wishes to raise in defamation proceedings were
considered fully by the Tribunal which found against the applicant on
all counts.
The respondent Government explain the principle of English
law that it is an abuse of the process of the court to initiate
proceedings in a Court of Justice for the purpose of mounting a
collateral attack on a final decision against the intending plaintiff,
which has been made by another court of competent jurisdiction in
previous proceedings in which the intending plaintiff could contest
the decision in the court by which it was made. (Hunter v. Chief
Constable of West Midlands and another (1981) HL 3 A ER 727.) This
principle is not confined to the issues which the court is actually
asked to decide, but also covers issues or facts which are so clearly
part of the subject matter of the litigation and could so clearly have
been raised that it would be an abuse of the process of the court to
allow a new proceeding to be started in respect of them. The
rationale of this principle is to ensure that there is a final end to
litigation and to prevent hardship on the individual by being vexed
twice for the same cause.
The respondent Government contend that since the Belgian
Linguistic case (Eur. Court H.R., Belgian Linguistic judgment of
9 February 1967, Series A no. 5) it is accepted that the Convention
does not guarantee a right of appeal against an initial determination
where there is no evidence or suggestion that those initial
proceedings were biased or were in any way themselves contrary to the
requirements of Article 6. Article 6, by analogy, does not guarantee
successive rights of access to different tribunals for the purpose of
gaining further adjudications of the same facts or issues, and to
allow the applicant further access to a court in the circumstances of
his case would be an abuse of the process of the English courts and
would, in effect, guarantee a right under the Convention which does
not, in fact, exist.
(b) Legal aid in defamation proceedings
The respondent Government submit that the application is
incompatible with the provisions of the Convention and in particular
Article 6 para. 1 or is inadmissible as being manifestly ill-founded.
Following the decision of the Court in the Airey case
(Eur. Court H.R., Airey judgment of 9 October 1979 Series A no. 32) and
the Commission's decision on admissibility in X v. the United Kingdom
(No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95) the respondent Government
contend that Article 6 para. 1 of the Convention leaves to the State a
free choice of the means to be used to provide an effective right of
access to the courts. The Convention does not place an obligation on
the State to provide legal aid for every dispute relating to a "civil
right". Furthermore, in operating any legal aid system, a balance must
be struck between the private interest of the individual litigant and
the public interest that public money should not be used to finance
suits or appeals which are improperly brought, or which stand no
reasonable prospect of success. Under Sections 7 (5) and (5A) of the
Legal Aid Act 1974 an applicant may be refused legal aid if, in the
particular circumstances of the case, it seems unreasonable that he
should receive it. The aim of this provision, to ensure that the
limited funds available for legal aid are not squandered on
undeserving applicants, was recognised in Application No. 8158/78
(supra) as legitimate both because it would be unreasonable for a
legally aided party to exploit that financial advantage against an
unaided opponent and because the result is to discourage further
litigation which would overburden the courts.
(i) The general law
The respondent Government submit that, in view of the
principles enumerated above, it is inappropriate and unreasonable to
provide legal aid in the case of defamation proceedings. Such
proceedings were excluded from the scope of the Legal Aid Act 1949
(the predecessor of the 1974 Act) on the basis that experience had
shown that they were among a class of actions in which there was most
room for bringing vexatious, frivolous, unmeritorious or unnecessary
claims. Whilst it was accepted that not all actions for defamation
fitted such a description it was thought to be an inherently risky
form of action readily open to such abuse.
In 1968 the Lord Chancellor's Advisory Committee reported on
the question of whether legal aid should be extended to defamation
proceedings. It concluded that this step was not desirable since they
considered "the risk of unmeritorious applications to be a very real
one". Although the experienced Law Society Committees could be
trusted not to grant legal aid in such cases the Advisory Committee
was "mindful of the need to keep down administrative costs".
Furthermore, the prospect of recovering damages in a defamation action
was slender save in the rare case of a meritorious action against a
rich defendant.
The respondent Government submit that defamation proceedings
as a class are intrinsically precarious and uncertain and are more
likely to prove fruitless, trivial or ill-founded than other types of
proceedings. Although there are mechanisms built into the legal aid
scheme to exclude unmeritorious proceedings, the outcome of defamation
proceedings is uniquely difficult to foresee and even if those
mechanisms were strengthened in defamation cases they would probably
not be effective in preventing the waste of money on ill-advised
proceedings. The Convention, under Article 6 para. 1, cannot be said
to require the State to fund proceedings at the public expense which
are unmeritorious.
(ii) The applicant's case
The respondent Government contend that the application is in
any event inadmissible as being manifestly ill-founded under Article
27 of the Convention since the applicant does not show that he has
been a victim of a breach of the Convention.
Had legal aid been available for defamation proceedings the
test set out in Section 7 of the 1974 Act would have been applied. In
all the circumstances the applicant would not have been able to
satisfy the statutory tests by persuading a General Legal Aid
Committee that he had reasonable grounds for bringing the proceedings.
The Committee would take into account all the facts of the
case:- the proceedings before the Tribunal; the Tribunal's findings of
fact, and in particular the fact that they preferred the evidence
given on behalf of the respondent rather than that given on behalf of
the applicant, and the consequent likelihood that a later tribunal
would form the same view; the length of time that had passed since the
defamatory statements complained of and the difficulty of bringing
witnesses up to proof after such a delay; and finally the inherently
precarious and risky nature of defamation proceedings.
In this final respect the Government emphasise that when
counsel advised the applicant in writing that it was impossible to say
that the chances of proving malice were better than fifty per cent he
did not consider at any length the possibility that a defence of
justification might be raised. Also, his advice was given before the
Tribunal proceedings relating to the unfair dismissal claim had been
concluded.
(c) The respondent Government's comments on admissibility
in the light of the Commission's decision in Application
No. 10871/84 (Dec. 10.7.86 unpublished)
The respondent Government submit that in Application
No. 10871/84, the Commission was concerned with precisely the same
issue under Article 6 para. 1 of the Convention as arises in the
present case. The respondent Government in particular draws attention
to the following paragraph of the Commission's decision in that case
(paragraph 4):
"The next question to be determined is whether the
unavailability of legal aid for defamation effectively denied
the applicant access to court, as ensured by Article 6 of the
Convention. In this respect the Commission recalls that,
unlike Article 6 para. 3 (c) which expressly provides for
legal aid in criminal cases where necessary, the Convention
does not guarantee such a right of assistance in civil cases.
The means by which a State ensures effective access to civil
courts is thus within its margin of appreciation (Eur. Court
H.R., Airey judgment of 9 October 1979, p. 15 para. 26).
The Commission notes that even where legal aid may be
available for certain types of civil action, it is reasonable
to impose conditions on its availability involving, inter
alia, the financial situation of the litigant or the
prospects of success of the proceedings (cf. No. 8158/78,
Dec. 10.7.80, D.R. 21 p. 95). The Commission considers,
similarly, that, given the limited financial resources of
most civil legal aid schemes, it is not unreasonable to
exclude certain categories of legal proceedings from this
form of assistance. The fact that the English legal aid
scheme excludes assistance in defamation proceedings has
not been shown to be arbitrary in the present case."
The respondent Government submit that the fact that the
English legal aid system excludes assistance in defamation proceedings
has similarly not been shown to be arbitrary in the present case, and
that the exclusion of legal aid for defamation is fully justified and
within the margin of appreciation left to States in this field.
The respondent Government submit that the present applicant is
not a person who can claim that he has been denied access to a court.
The applicant's allegations had already been considered twice
by a court in the proceedings in which he contended he had been
unfairly dismissed, and his evidence had been rejected. On each
occasion the Tribunal, in deciding whether the applicant's dismissal
was fair, considered evidence on precisely the same matters as the
applicant now seeks to make the basis of his allegations of
defamation. On each occasion the Tribunal preferred the evidence
given on behalf of the local authority, his previous employer,
(including that of the person against whom defamation is claimed) to
that given by and on behalf of the applicant.
The respondent Government note that, although the applicant
sought counsel's opinion in 1978 on whether the allegations were
defamatory, this was scarcely encouraging. In writing, counsel's
opinion states that he could not say "that the chances of proving
malice ... are better than 50%. The respondent Government point out
that it was not until 25 July 1983, six years after the alleged
defamation and five years after the last decision by the Industrial
Tribunal, that the applicant commenced proceedings for defamation.
The respondent Government submit that the applicant would not
have received legal aid even if legal aid had been available for
defamation proceedings.
In considering Article 6 para. 1 of the Convention in
conjunction with Article 14 of the Convention the respondent
Government submit that the claim that the applicant has been
discriminated against on the ground of poverty in respect of his
rights under Article 6 para. 1 is, in the circumstances of the present
case, no more than a re-statement of the issue arising under Article 6
para. 1 taken alone. In the Government's submission, it would be
appropriate for the Commission to find that, having decided the issue
on the basis of Article 6 para. 1 alone, no separate issue arises
under Article 14 and that the applicant's complaint, if any, of a
separate breach of Article 14 is manifestly ill-founded.
Submissions of the applicant
Admissibility
(a) Res judicata
The applicant accepts the principle that subsequent
proceedings must not seek to mount a collateral attack on previous
proceedings which have already determined the question. However, in
his judgment in Hunter v. Chief Constable of West Midlands
Lord Diplock formulated the principle as being "that the identical
question sought to be raised has been already decided by a competent
court". The applicant contends, relying upon various dicta of Lord
Diplock, that this necessarily raises the question of whether in both
sets of proceedings (i) the standard of proof was the same, and (ii)
the facts to be decided upon were the same. If either of these
conditions is not satisfied, the restrictions on pursuing subsequent
proceedings cannot apply.
On the question of standard of proof the applicant submits
that it is generally recognised that the rules of evidence of
industrial tribunals are not the same as those which bind the formal
courts. This is a result of deliberate government policy designed to
render the industrial tribunals accessible to the layman by reducing
the technicalities involved. Hence written statements, which would
not be admissible in a court of law, may be admitted in evidence at
the discretion of an industrial tribunal which may also accept hearsay
evidence which would be excluded from court proceedings. The
applicant submits that the result of such differences of approach is
that the facts of his case would not have been investigated by the
Tribunal in the rigorous and thorough way in which they would be
considered by the High Court in defamation proceedings.
On the subject of the particular facts to be decided by the
different tribunals the applicant contrasts the questions which the
Tribunal considered and those which the court would have to consider.
The Tribunal had to decide whether the applicant had been unfairly
dismissed, that is to say whether, at the time of the dismissal, the
employer acted reasonably (Schedule 1 para 6 (8) of the Trade Union
and Labour Relations Act 1974). In contrast, in considering the
applicant's claim that he had been defamed, the defendant would have
to persuade the court that one of the defences to such a claim applied
- that is either that the statements complained of were true
(justification) or that the statements were protected by a privilege,
and that if such privilege were qualified there was no malice on the
part of the person making the statement.
The applicant points out that in its decision the Tribunal
restricted itself to considering the matter according to the statutory
test set down to decide the question of unfair dismissal, and it did
not make any specific comment on whether or not it considered the
statements which found the allegation of defamation to be true. The
applicant argues that, even if the tribunal had arrived at a
conclusion regarding the truth of the statements, the facts would have
been considered according to different rules of evidence and generally
in a different manner, and thus such a finding would not have been
conclusive under the rule in Hunter (supra).
As regards malice, the applicant argues that this need not
have been considered by the Tribunal in considering whether the local
authority, through their employee, had acted reasonably. The Chief
Executive could, for example, have been personally malicious but
nevertheless have acted reasonably in the employer's interest in
dismissing the applicant. In any event, the Tribunal expressed no
view on the question of malice.
The applicant points out, as a further example of the way in
which the procedure before the Tribunal differs from the proposed
defamation proceedings, that the respondent in the proceedings before
the Tribunal was the local authority while the primary defendant in
any defamation proceedings would be the Chief Executive personally.
Having indicated the difference between the proceedings before
the Industrial Tribunals and the proposed defamation proceedings,
which differences he submits are sufficient to take the matter outside
the rule in Hunter, the applicant moreover contends that the fact that
the English courts would or might find against him in the defamation
proceedings, which he denies to be the case, is in any event
irrelevant since the Convention is concerned, inter alia, to limit any
restriction of liberty which national courts may seek to impose upon
the individual. The Commission and the Court are thus not prevented
from considering a matter merely because the national court would not
consider it, and to the extent that the submissions of the respondent
Government rely upon such a formulation they should be disregarded.
The applicant further contends that since legal aid was not
available before the Tribunal the present application is relevant
under the Convention in relation to the question of the availability
of legal aid irrespective of any claim of res judicata.
(b) Legal aid in defamation proceedings
The applicant accepts the right of Governments to devise a
system to prevent frivolous or vexatious cases being litigated at the
public expense. However, he does not accept the respondent
Government's argument that such a right must result in the exclusion
of defamation proceedings from a legal aid system.
The local authority would be involved in any defamation
proceedings as a defendant and cannot be classified as financially
exploitable as the respondent Government would seem to imply. He
submits in any case that the argument concerning the exploitation of a
defendent is referable to legal aid for any type of action, and thus
cannot further the conflict over the desirability of its availability
for defamation proceedings.
(i) The general law
The applicant draws a parallel with English law in which it is
recognised that where a discretion is given to a domestic authority,
that authority should not fetter such discretion by laying down
universal rules totally unrelated to the facts of individual cases.
He maintains that the respondent Government's policy of not permitting
legal aid to be available for any defamation proceedings prevents them
from doing that which the Convention intends them to do in relevant
cases, namely permit the defence of each and every civil right.
He further submits that the respondent Government's attitude -
that it is frivolous and vexatious for anybody ever to take
proceedings in defamation - is similar (although clearly not as
serious), as a decision by the respondent Government to abolish
totally the right to sue for defamation. Such subjective reasoning
could enable the Government to exclude large areas from the protection
provided by the Convention.
Whilst the applicant accepts that the refusal of access to
legal aid is a lesser infringement on civil rights than the withdrawal
of the right itself, he nevertheless maintains that the selective use
of legal aid could operate as a means of promoting practices which are
contrary to the spirit of the Convention, e.g. if legal aid was
granted only to Government employees.
The applicant complains that the Government's decision to
deny legal aid for all defamation proceedings is "arbitrary" and
thus contrary to the criteria laid down in the Commission's decision
in X. v the United Kingdom (No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).
He considers that the respondent Government is precluded from
arguing that the law of defamation is basically unsound for three
reasons. The Government maintain that law in force and must therefore
be considered to approve of its terms; the right of protection of
reputation is recognised by Article 10 para. 2 of the Convention; and
the Court accepted in the Golder case (Eur. Court H.R., Golder
judgment of 21 February 1975 Series A, no. 18) the need for access to
the courts to institute proceedings for defamation. Furthermore, the
result of legislation in the United Kingdom is to recognise the
importance of defamation in two respects. It is one of only four
types of civil action where a trial must be before a jury and not a
judge sitting alone (Section 69 Supreme Court Act 1981 and Section 66
County Courts Act 1984), and it is one of four (different) civil
actions which can only be tried by a County Court if all parties to
the action are in agreement (Sections 15 and 18 County Courts Act
1984). The applicant further notes that members of various British
Governments including a former Prime Minister and the current
Attorney-General have themselves had no hesitation in bringing actions
in defamation. In the absence of specific proposals from the
respondent Government for the repeal of the law of defamation the
Commission is entitled to presume that the right to invoke this
legislation in defence of one's reputation is desirable.
The respondent Government's references to the Lord
Chancellor's Advisory Committee Report of 1968 clearly show that the
Committee's conclusion was arrived at on economic rather than social
grounds. The applicant claims that the European Convention is not
concerned with economic grounds where these conflict with human
rights.
The applicant emphasises that the respondent Government make
no reference to the Committee on Defamation ("the Faulks Committee")
whose Report is published Cmnd 5909. This Committee reported in 1975
that the absence of legal aid in defamation was anomalous and it
recommended that legal aid be available with certain safeguards to
avoid abuse of such a right. The applicant argues that since the
findings of the Faulks Committee, which are in contradiction to those
of the other Government Committees referred to by the respondent
Government, were prompted by considerations of principle rather than
finance, they are a more persuasive authority in relation to the
Convention. He further contends that the omission by the respondent
Government of any reference to the Faulks Committee shows both a lack
of confidence in its own case and a dishonest attitude towards
submissions to the Commission. He urges that the application should
be declared admissible regardless of any other consideration in order
to prevent the risk of the Commission's complaints procedure from
being undermined by the possibility of disingenuous representations
from Governments.
The respondent Government also failed to refer to the Royal
Commission on Legal Services Final Report (Cmnd 7648) which was
produced in October 1979. At paragraphs 13.69 and 13.70 the Royal
Commission considers the scope of the legal aid scheme in the United
Kingdom. The Commission expressed its agreement with the earlier
recommendation made by the Legal Aid Advisory Committee that legal aid
should be made available for defamation proceedings.
Concerning the claim that defamation proceedings are often
frivolous, trivial and ill-founded the applicant compares matrimonial
proceedings, which are attended by the same risks and which
nevertheless come within the legal aid scheme. If the respondent
Government are doubtful of the ability of the Legal Aid Committees to
deal with applications for legal aid in defamation proceedings, then
it follows that there must be some doubt about their ability to carry
out their tasks in relation to other applications on legal aid
matters. The respondent Government are thus irresponsible in
continuing to entrust the Committees with such a task. Insofar as the
respondent Government are also of the view in their submissions that
such Committees could properly carry out their tasks the applicant
argues that they must be required to elect which of these opposite
views they wish to adopt.
(ii) The applicant's case
The applicant contends that in view of the prima facie
violation of his rights under the Convention the Commission and the
Court should not be expected to undertake detailed administrative and
quasi-judicial tasks in investigating whether or not the applicant
would be likely to receive legal aid in the event of its being
available. This application should be determined according to the
general principles involved. The respondent Government should then be
required to remedy any violation by means of whatever internal
administrative procedures they choose.
In so far as the respondent Government complain of the
applicant's delay in seeking to institute defamation proceedings this
was directly caused by the absence of legal aid. Part of the delay
has also been caused by reasonable, if unsuccessful, attempts made by
the applicant to settle the matter by eliciting an apology from the
Chief Executive of the local authority. The applicant also complains
that he is the victim of continuing defamation which serves to
minimise the effect of any delay.
As regards the matters to be taken into account by a Legal Aid
Committee in considering whether or not to grant legal aid, the
applicant accepts that the likely success of the proposed action is a
relevant consideration. However, he emphasises that legal aid is not
limited, either in theory or in practice, to cases where there is a
more than fifty per cent chance of success. By analogy with the right
of a person charged with a criminal offence to be given free legal
assistance where the interests of justice so require and he has
insufficient means (contained in Article 6 para. 3 (c)), the
Legal Aid Committee should be all the more ready to grant him legal
aid since he seeks to vindicate himself by means of a civil action of
the imputation that he has been guilty of a criminal offence.
(c) The applicant's comments on admissibility in the light
of the Commission's decision in Application No. 10871/84
(Dec. 10.7.86 unpublished)
(i) The applicant's further submissions under Article 6
The applicant cites the case of Airey (Eur.Court H.R.,
Airey judgment of 9 October 1979, Series A no. 32) as authority for
the need for legal representation in certain disputes relating to
civil rights.
The Commission in its decision on the admissibility of
Application No. 10871/84 refers to the fact that the Court in the
Airey case recognised that the means by which a State ensures
effective access to civil courts is within its margin of appreciation
(paragraph 26). The Commission further noted that even where legal
aid may be available for certain types of civil actions, it is
reasonable to impose conditions on its availability involving, inter
alia, the financial situation of the litigant or the prospects of
success of the proceedings, and that given the limited financial
resources of most civil legal aid schemes, it is not unreasonable to
exclude certain categories of legal proceedings from such assistance.
The applicant does not argue against this and states that there may
well be types of legal proceedings which by their nature, taking into
account, for example, the informality of the forum in which they are
instituted, do not require the provision of legal aid. Such
proceedings would fall outside the category of cases referred to in
the Airey case, where by virtue of the complexity of the procedure
or of the case, and the fact that assistance is indispensable for an
effective access to court, the State is compelled under Article 6
para. 1 to make provision for legal aid. It is submitted, however,
that in the light of the Airey case, the guiding principle must be
that the provision of legal aid is required by Article 6 para. 1 in
cases "when such assistance proves indispensable for an effective
access to court ..." (paragraph 26), and can only be excluded in
respect of proceedings where such assistance is not necessary for the
effective conduct of a litigant's case.
The applicant submits that legal aid is indispensable in
defamation proceedings for effective access to court due to the
complexity of the substantive law, the High Court being, except in
some exceptional cases, the forum for the hearing, and the
incompatibility of the emotional involvement of the applicant with the
need for objectivity required by advocacy.
The respondent Government in their Observations argue that
defamation proceedings should be excluded from the legal aid scheme on
the ground that they are more likely to prove fruitless, trivial or
ill-founded than other types of proceedings. This is an argument,
however, which has been rejected again and again as a reason for
excluding defamation proceedings from the legal aid scheme by a number
of independent and authoritative bodies within the United Kingdom,
which support a change in the law so as to include defamation cases
under the scheme. Amongst others, the applicant refers to the Faulks
Committee and the Royal Commission on Legal Services and also to the
recommendation made by the Bar, the Law Society, and "Justice" (the
British section of the International Commission of Jurists).
The applicant submits that the recommendation that legal aid
be extended to defamation actions, strongly indicates that, by failing
to change the law in accordance with the unanimous recommendations
made, the respondent Government have exceeded their margin of
appreciation under Article 6 para. 1 of the Convention.
(ii) The applicant's further submissions under
Article 14
The applicant complains that the non-availability of legal aid
for defamation proceedings constitutes a breach of Article 6 read in
conjunction with Article 14 of the Convention because its effect is to
discriminate on the ground of the applicant's lack of financial means
in the enjoyment of his right of access to the courts for the fair
determination of his civil rights to vindicate his reputation and good
name. Its effect is also to discriminate against him as a private
individual compared with public officials (i.e. police officers) who
receive legal aid from public funds.
The applicant states that litigation in the High Court is
expensive and defamation proceedings in particular are notoriously
complex and require the employment of expensive specialist counsel in
order to have a real chance of success, and in the absence of legal
aid, success is a realistic possibility only for the wealthy.
The applicant states that the respondent Government's failure
to provide legal aid in defamation actions thus constitutes an
unjustifiable difference of treatment on the ground of property or
means within the context of the right of access to a court guaranteed
by Article 6 para. 1 read in conjunction with Article 14 of the
Convention.
The applicant states that the unfairness and discriminatory
nature of the present situation is heightened by the fact that certain
categories of public employees, but not private persons, do in fact
have access to State funds for the purpose of bringing or defending
defamation proceedings. With regard to the police, for example, it is
specifically provided by Statutory Instrument (No. 583 of 1977) made
under the Police Act 1964 that funds held by the Police Federation
(such funds being partly provided by the State) may be used to defray
legal charges incurred by a member of the Federation in the bringing
of a defamation action. Quite apart from this provision there exists
a practice whereby the local police authority or the Home Office
(which is the police authority for the Metropolitan Police Force) in
certain cases use State funds to finance the institution of defamation
proceedings by police officers. In Section 48 of the Police Act 1964
provision is made for the payment by the local police authority or the
Home Office of any damages awarded against or costs incurred by a
police officer in defending a tort action, which includes a defamation
action.
The difference of treatment is especially unjustifiable since
the effect of making legal aid available to police officers in
defamation cases is to deter members of the public from complaining
about misconduct by members of the police service. It is submitted
that, by granting financial assistance to public officers, while
denying it to private individuals, to protect their rights to
reputation in legal proceedings, the respondent Government is
discriminating unjustifiably as between public servants and ordinary
citizens. Were the applicant a police officer, his position with
regard to the bringing of a defamation action would be quite
different.
A similar example is the capacity of the British Broadcasting
Corporation, with its publicly funded income, to defend defamation
actions with virtual immunity from the financial consequences while
the individual with modest means, such as the applicant, may have his
reputation ruined, lose his job and have no means of redress.
For these reasons, it is submitted that the distinctions based
on property or means or private status created in the context of the
right of access to a court by the denial of legal aid for defamation
actions have no objective and reasonable justification, and that the
principle of equality of treatment guaranteed by Article 14 has
accordingly been violated by the respondent Government.
(iii) The present application compared with
Application No. 10871/84
The applicant points out that in the above mentioned
application the Commission was not referred to the views of the
various independent and authoritative bodies previously referred to,
all of which have recommended that legal aid in the United Kingdom be
extended to defamation proceedings. Furthermore, the applicant's
submissions that the respondent Government is in violation of Article
14 read in conjunction with Article 6 of the Convention were not put
before the Commission.
The applicant states that the facts of the two cases are very
different. The applicant in the other case did achieve a settlement
of some £5,000, as well as receiving a written apology from the
defendants in the libel suit commenced by him. The respondent
Government's main submission on the issue of Article 6 para. 1 in
Application No. 10871/84 seems to have been that, as a matter of
fact, that case could be distinguished from the Airey case
because that applicant was not denied effective access to the court in
the same way as Mrs. Airey, who was totally unable to get an action
for judicial separation on its feet without the financial assistance
of legal aid. This argument appears to have been accepted by the
Commission in its decision in Application No. 10871/84. In paragraph
4 of its decision the Commission states that:
"... the facts of the case show that the applicant
did have effective access to court as a litigant
in person, albeit inexperienced. This is borne
out by the £5,000 settlement of the applicant's
defamation claim ..."
The applicant submits that his case falls into the same
category as that of Mrs. Airey and is very different from Application
No. 10871/84. Being unable to get legal aid, the applicant has not
served a writ (although one has been issued), let alone a Statement of
Claim, and the position is therefore that he has been deprived,
through a lack of means, of any real possibility to institute and
pursue proceedings with the aim of clearing his name. In the
applicant's case there has been no settlement, nor any apology from
the defendants in the action contemplated by him. Unlike the
applicant in Application No. 10871/84, the present applicant has
received no benefit whatever from the availability under United
Kingdom law of a cause of action in defamation. The facts of the
present case show, therefore, that as an unaided litigant in person,
the applicant has not had effective access to a court within the
meaning of Article 6 para. 1 of the Convention. Were he a person of
financial means or a police officer he would have had effective
access, in the latter case with the benefit of financial assistance
from the State.
(iv) Legal advice received by the applicant as to the
likelihood of success in defamation proceedings
The respondent Government have raised the issue of the
applicant's chances of success in defamation proceedings instituted by
him, and the Commission in its letter of 26 November 1986 invited the
applicant to clarify the position with regard to the legal advice he
received.
In a written Opinion dated 1 September 1978 specialist
defamation counsel, Mr. Richard Rampton, expressed his view that in
order to succeed in a defamation action, the applicant would have to
show malice on the part of the maker of the alleged defamatory
statement. He advised that:
"taken overall, the foregoing matters do, on the
face of it, constitute a fairly strong case that
(the maker of the statement) was malicious. But
a number of them require further amplification
or confirmation ..."
Without obtaining further information Mr. Rampton could not
say that the chances of proving malice against the maker of the
statement at a trial were better than 50%. Once further information
was obtained Mr. Rampton advised that a jury would be likely to
conclude on a balance of probabilities (the necessary civil burden of
proof), that this maker of the statement was motivated by malice. In
a letter to the applicant dated 26 April 1984, Mr. Rampton referred to
the view he had expressed in conference, stating that although he did
not remember it, he could "well believe that you (the applicant) were
able to satisfy me that a jury would be likely to conclude, on the
balance of probabilities, that (the maker of the statment was
motivated by malice)."
The applicant has recently obtained a further Opinion on the
merits of his case by The Rt. Hon. Leon Brittan Q.C., M.P. (a leading
defamation specialist as well as a former Home Secretary in the
present Government). Not having the benefit of seeing the applicant
in conference, Mr. Brittan agrees with the conclusion reached by
Mr. Rampton and goes on to say:
"(I can) readily appreciate that Mr. Rampton may have been
able ... to clarify a number of the queries that he
raised in his Opinion and to conclude that a jury
would be likely to find, on the balance of probabilities,
that (the maker of the statement) was guilty of malice."
THE LAW
1. The applicant complains that he has been denied access to
court for the determination of his civil rights as no legal aid is
available under the Legal Aid Act 1974 to enable a person to bring a
defamation action. He complains that the non-availability of legal
aid effectively denies him access to court because he has insufficient
means to instruct a lawyer to represent him and insufficient training
and legal knowledge to pursue his claim unrepresented. He further
claims that he is discriminated against on the ground of poverty from
pursuing his civil rights.
As regards his primary complaint of a denial of access to the courts
the applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention which
provides, inter alia:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law."
It is established, following the Golder case (Eur. Court
H.R., Golder judgment of 21 February 1975, Series A no. 18), that
Article 6 para. 1 (Art. 6-1) guarantees a right of access to court for
the purposes of the determination of an individual's "civil rights".
Furthermore, the Commission has repeatedly stated that the right to
enjoy a good reputation is a civil right. This line of case law is
derived from No. 808/60, Isop v. Austria, Dec. 8.3.62, Yearbook 5 p.
116, where the Commission held that "the right to enjoy a good
reputation and the right to have determined before a tribunal the
justification of attacks upon such reputation must be considered to be
civil rights within the meaning of Article 6 para. 1 (Art. 6-1)". This
case law was confirmed by the Court in its judgments in the Golder
case (supra) and the Minelli case (Eur. Court H.R., Minelli judgment
of 25 March 1983, Series A no. 62) (as also by the Commission in No.
7116/75, X. v. FRG, Dec. 4.12.76, D.R. 7 p. 91; and No. 8366/78, X.
v. Luxembourg, Dec. 8.3.79, D.R. 16 p. 169).
The present case concerns the scope and content of the right
of access to court. In particular the applicant complains about the
non-availability of legal aid to facilitate access to court in
defamation proceedings.
The Commission recalls that it is for the domestic authorities
to decide upon the way in which the obligations imposed by the
Convention are to be respected. The Convention organs retain the
ultimate control of whether the chosen method which the domestic
authorities use complies with the Convention in a particular case.
Article 6 para. 1 (Art. 6-1) does not specifically guarantee
the right to free legal aid in relation to the right of access to
court in the determination of an individual's civil rights and
obligations. This is to be contrasted with Article 6 para. 3 (c)
(Art. 6-3-c) which provides:
"Everyone charged with a criminal offence has the following
minimum rights:
...
(c) to defend himself in person or through legal assistance
of his own choosing or, if he has not sufficient means to pay
for legal assistance, to be given it free when the interests
of justice so require".
However, in its judgment in the Airey case (Eur. Court
H.R., Airey judgment of 9 October 1979 Series A no. 31) the Court
decided that the right of access to court guaranteed by Article 6
para. 1 (Art. 6-1) is a right which is "practical and effective" and
not merely "theoretical and illusory". The Court held that, as
regards civil litigation, despite the absence of a provision
equivalent to Article 6 para. 3 (c), (Art. 6-3-c) Article 6 para. 1
(Art. 6-1) might be at issue. It stated:
"Article 6 para. 1 (Art. 6-1) may sometimes compel the State to provide
for the assistance of a lawyer when such assistance proves
indispensable for an effective access to court either
because legal representation is rendered compulsory, as is
done by the domestic law of certain contracting states for
various types of litigation, or by reason of the complexity
of the procedure or of the case" (para. 26).
The Court emphasised that the Convention did not require the
grant of legal aid in all civil cases. It was concerned to ensure
"that an individual should enjoy his effective right of access to the
courts in conditions not at variance with Article 6 para. 1 (Art. 6-1)"
(ibid. para. 26). The means to be used towards this end are within
the discretion of the Contracting State, and it is not in every case
that free legal aid will be appropriate or necessary.
Having considered the distinction between the terms of Article
6 para. 3 (c) (Art. 6-3-c), which guarantees in terms the right to
free legal aid in criminal proceedings in certain circumstances, and
Article 6 para. 1 (Art. 6-1), which makes no reference to legal aid,
the Commission considers that the circumstances in which an
entitlement to legal aid will be necessary to satisfy the requirements
of Article 6 para. 1 (Art. 6-1) are circumscribed. The High
Contracting Parties specifically undertook to guarantee free legal aid
where the interests of justice so require in criminal proceedings. It
must be assumed that the omission of such a right in relation to civil
proceedings was equally deliberate. For this reason the right
enunciated in the judgment of the Court in the Airey case cannot be
comparable in its comprehensiveness to that guaranteed under Article 6
para. 3 (c) (Art. 6-3-c). This also follows from the fact that the
right under Article 6 para. 1 (Art. 6-1) to a fair hearing must be
determined by reference to the particular facts and circumstances of
an individual case.
The Commission recalls its recent decision on the
admissibility of Application No. 10871/84 (Dec. 10.7.86 unpublished)
in which the lack of legal aid in defamation proceedings was also at
issue. The Commission in that case noted:
"Even where legal aid may be available for certain
types of civil action, it is reasonable to impose
conditions on its availability involving, inter alia,
the financial situation of the litigant or the prospects
of success of the proceedings (cf. No. 8158/78,
Dec. 10.7.80, D.R. 21 p. 95). The Commission considers,
similarly, that, given the limited financial resources
of most civil legal aid schemes, it is not unreasonable
to exclude certain categories of legal proceedings from
this form of assistance. The fact that the English legal
aid scheme excludes assistance in defamation proceedings
has not been shown to be arbitrary in the present case"
(para. 4).
In the Airey case the applicant sought to obtain a decree
of judicial separation from her husband on the grounds of his alleged
physical and mental cruelty to her and their children. She could not
afford the services of a solicitor and the procedure in the Irish High
Court was sufficiently complicated to make it impossible for her to
conduct the application in person. In the present case the applicant
wishes to bring an action for defamation against his ex-employer. The
Commission accepts that the applicant has insufficient means to pay
for the services of professional legal advisers and that it is
unreasonable to expect him to undertake defamation proceedings
unrepresented because such proceedings, which will normally be dealt
with in the High Court, are extremely complex as regards both formal
pleadings and procedure. The Commission nevertheless considers
that the present case is to be distinguished from the Airey case.
The general nature of a defamation action, being one protecting
an individual's reputation, is clearly to be distinguished from an
application for judicial separation, which regulates the legal
relationship between two individuals and may have serious consequences
for any children of the family. Defamation proceedings are moreover
inherently risky and it is extremely difficult accurately to predict
their outcome.
The Commission recognises, furthermore, that the nature of a
claim of defamation is such that it may easily be open to abuse. As a
result there is an objective risk that proceedings for defamation
may be unreasonably or abusively pursued. This is reflected in the
common practice of Member States of the Council of Europe to adopt
special procedures to guard against such abuses.
The Commission notes the legal requirements in the United
Kingdom to establish a case in defamation, the requisite burden of
proof and the defences which may be raised. In particular, the
Commission notes that it is an absolute defence for a respondent to
prove the veracity of the statement forming the basis of the alleged
defamatory statement, and in cases where the respondent may claim
qualified privilege, such as in this case, such qualified privilege
can only be overcome by the person bringing the defamation proceedings
if it can be shown that the statement was made maliciously.
In the present case the question whether the applicant's
dismissal was unfair has already been examined by the Tribunal and in
the proceedings before it the applicant had the opportunity of
presenting his arguments as to why he considered his dismissal to be
unfair and to offer evidence on this subject. The burden of proof at
the hearing was on the ex-employers to identify the reason, or if
there was more than one, the principal reason, for the applicant's
dismissal. They were also required to show that it was a reason such
as would justify the dismissal of an employee holding the position
which the applicant held, as required by paragraph 6(8) of the First
Schedule of the Trade Union and Labour Relations Act 1974. The
Tribunal found this burden of proof satisfied and held that the
applicant's dismissal was "reasonable" as required by the 1974 Act.
The Tribunal's findings were quite clear, namely:
"On the evidence that we have heard and having considered
the documentary evidence adduced, we consider that (the
ex-employers) had reasonable grounds to form the view that
(the applicant) had in fact made wrongful claims for journeys
which he had undertaken by car and that there was sufficient
evidence for (the ex-employers) to reach the view that (the
applicant) had taken holidays to which he was not entitled;
that the holiday sheet had been altered in order to facilitate
taking of those holidays. ... We consider and so find that
the principal reason for his dismissal was (the ex-employers')
belief that (the applicant) had submitted wrongful car expense
claims. For a man holding the position which (the applicant)
held this would constitute, and we so find, gross misconduct;
it would justify (the ex-employers) summarily dismissing
him."
The Tribunal then went on to state:
"We certainly dismiss any suggestion which has been introduced
by the applicant, that his dismissal had been engineered
politically or that (the Chief Executive) wished to be rid of
him. The true position is that (the applicant's) dismissal
was brought about for the reasons referred to above; they were
reasons that related solely to his conduct and capability. He
was given every opportunity to give explanations. Those
explanations were not, in the view of (the Chief Executive)
satisfactory. We consider that (the Chief Executive) was
fully entitled, having regard to the evidence before him,
to reach and form that view."
Although the Tribunal did not specifically consider the
allegations of defamation which the applicant seeks to bring before
the High Court it did hear evidence from various parties relating to
the dismissal. Whilst the Commission accepts that the evidence heard
by the Tribunal was applied to the question of whether the dismissal
was "reasonable" it notes the Tribunal's finding that, having heard
witnesses for the present applicant and for his ex-employers, there
were reasonable grounds upon which to form the view that the applicant
had made wrongful expense claims and taken holidays to which he was
not entitled.
The Commission notes the evidential burden in the proceedings
before the Tribunal which is to be contrasted with that required of
the applicant in defamation proceedings. Whilst it is not possible to
make a direct comparison, the Commission notes the difficulties that
the applicant would have in trying to establish and prove his claim in
a defamation action. It was on the reasonableness of the Chief
Executive's belief of the veracity of the statement he made concerning
the applicant's wrongful expense claims and the taking of holidays to
which he was not entitled, that the Tribunal found in favour of the
ex-employers, and it would also be, in all likelihood, on the veracity
of this statement that the claim in defamation would fall to be
decided. The Commission notes that in the proceedings leading to the
first decision the Tribunal quite clearly preferred the evidence of
the ex-employers and the Chief Executive to that of the applicant.
The applicant has not produced any evidence to show that the Tribunal
was wrong in its finding on the evidence and he has not produced any
evidence to show that before any other court, his evidence would be
favoured over that of his ex-employers or the chief executive.
The Commission also notes that the advice received by the
applicant from his counsel did not address the question of any defence
being raised on the basis of the truth of the alleged defamatory
statements. Even if the court found that there was no truth in the
alleged defamatory statement, the applicant would, in defamation
proceedings, have the further task of overcoming the defence of
qualified privilege and establishing that the chief executive was
motivated by malice in making the statement.
Having considered the proceedings before the Tribunal, the
evidence which was put forward, the findings on the facts, the
evidential burden required, also considering the evidence that the
applicant would need to raise in defamation proceedings and the
defences of veracity of the statement and qualified privilege, on the
facts of this case, the Commisison considers that the applicant has
not shown that he was hindered in his access to court by the
non-availability of legal aid as he did, in fact, have a hearing
which, although it did not specifically consider the allegation of
defamation, considered the same substantive issues as would have been
considered in defamation proceedings.
The Commission considers that the non-availability of legal
aid for defamation proceedings in the present case has not therefore
deprived the applicant of access to court contrary to Article 6
para. 1 (Art. 6-1) of the Convention.
It follows that this aspect of the applicant's complaint is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also invokes Article 14 (Art. 14+6-1) of the Convention
in conjunction with Article 6 para. 1 (Art. 6-1). Article 14 (Art. 14)
provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without inequality on any ground
such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a
national minority, property, birth or other status."
The Court has held in its judgment in the Belgian Linguistic
case (Eur. Court H.R., Belgian Linguistic judgment of 23 July 1968,
Series A no. 6) that, although the guarantee laid down in Article 14
(Art. 14) has no independent existence, "a measure which in itself is in
conformity with the requirements of the article enshrining the right
or freedom in question may however infringe this article when read in
conjunction with Article 14 (Art. 14) for the reason that it is of a
discriminatory nature".
The Court went on to state that a difference in treatment
will be discriminatory if it has "no objective and reasonable
justification", that is if it fails to pursue a "legitimate aim" or
there is "no reasonable relationship of proportionality between the
means employed and the aim sought to be realised" (ibid. p. 34
para. 10).
The applicant alleges that the absence of legal aid for
defamation proceedings discriminates against him on the ground of his
poverty and on the ground of the particular civil right which he
seeks to defend. The effect of the non-availability of legal aid is
that he cannot afford to pay a lawyer to represent him. The absence
of legal aid would not have the same effect on a more wealthy person
because he would nevertheless have the means to instruct a lawyer to
represent him, thereby improving his chance of success in any legal
proceedings as compared to that enjoyed by an unrepresented applicant.
Similarly, a litigant in proceedings other than defamation might be
eligible for legal aid.
The applicant further alleges that certain individuals, such
as members of the police service, are entitled to use public money to
defend their reputations in defamation proceedings and that this
amounts to further discrimination.
On the facts of the present application the Commission has
already expressed its opinion that the guarantees provided by Article
6 para. 1 (Art. 6-1) have not been breached. Having regard to the
particular terms of the guarantees provided by Article 6 para. 1
(Art. 6-1), and in the absence of any improper aim or disproportionate
or differential treatment, the Commission does not therefore consider
that there is any breach of Article 14 (Art. 14+6-1) of the Convention
read in conjunction with Article 6 para. 1 (Art. 6-1).
It follows that this aspect of the applicant's complaint is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons the Commission,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)